United States v. Veloz

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
SUPPRESS AN EXTRAJUDICIAL IDENTIFICATION

RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE

The
facts underlying this narrowly tailored motion to suppress an
out-of-court identification are straightforward and not in
dispute. The identifying witness, Jean-Pierre Saliba, is the
owner of a used car lot in Haverhill, Massachusetts,
previously located in Derry, New Hampshire. Saliba was
interviewed on September 7, 2016, by an agent of the FBI
regarding a $3, 800 sale in July of 2012 in Derry of a used
Cadillac to a person the FBI believed to have been defendant
Danny Veloz. Saliba recalled that he had been introduced to a
man named “Danny” a year or so before the July
2012 sale by a woman named Jeanny Betances. At that first
meeting, Betances and “Danny” paid $10, 000 in
cash for a BMW utility vehicle without any haggling. Saliba
described “Danny” as a “light-skinned
Hispanic male.” Saliba also volunteered that sometime
after the sale of the Cadillac he had begun an affair with
Betances, although he had eventually broken off with her when
things became “complicated.”[1] The agent then
showed Saliba an array of 10 photographs of mostly
fair-skinned young Hispanic males (0ne of which depicted
Veloz). Saliba stated that he did not recognize any of the
individuals in the photos, but identified one photo (not
Veloz's) as picturing a man with a complexion similar to
“Danny's.”

After
some discussion of the existence of records confirming the
vehicle sales, Saliba further described “Danny”
as having a scar on his lip and “a sport's
body.” The agent then urged Saliba to take another look
at the array. On the second attempt, Saliba selected
Veloz's photo, stating that he was 80 percent certain
that this was the “Danny” he had met (mainly
because of his eyes), although the photo differed in several
features from the “Danny” that he remembered (who
was skinnier, lighter-skinned, and did not have an
“elongated” head).

On
October 13, 2016, Saliba met again with the agent, this time
at the FBI offices in Lowell. Saliba informed the agent that
he had, after the first interview, applied for a job with the
FBI as a contract interpreter. He also offered the
recollection of a tiger tattoo that “Danny” had
worn on his arm or hand. When shown a photograph of
Veloz's tattooed arm, he was unable to confirm that it in
fact depicted the tiger tattoo that he had described. He was
then shown a second array of 10 mug shots of young Hispanic
men. This time, he immediately selected the same photo of
Veloz that he had eventually chosen (with 80 percent
confidence) at the September showing.

DISCUSSION

As the
government points out, the court has previously, see
Dkt. #396, in connection with contested photo identifications
made of Veloz by cooperating conspirators, explained that due
process considerations have little, if any, bearing in cases
where the identifying witness is literally a defendant's
“partner in crime.” This is because the
“prior familiarity exception” serves as the
guarantor of reliability. See, e.g., United States v.
Mears, 614 F.2d 1175, 1177 (8th Cir. 1980). Here,
however, I cannot say that the exception applies. As the
interview notes with Saliba make clear, his acquaintance with
Veloz (if indeed it was Veloz) consisted of singular meetings
four and five years earlier over the sale of two cars during
which Veloz never spoke (because of his limited
English).[2] There is no evidence in the record that
Saliba had any kind of continuing relationship with Veloz in
the four years that ensued, hence he could hardly be regarded
as one of Veloz's familiars. Moreover, Saliba had good
reasons to curry favor with the FBI, both because of his
desire to be employed by the Bureau as a contract interpreter
and possibly out of concern for his own safety given his
initiation of an affair with Veloz's wife while Veloz was
in prison. More to the point, however, is the fact that
Saliba was unable to identify Veloz's photo in the first
array (and in fact pointed initially to the picture of
another man) and only tentatively selected the photo of Veloz
when encouraged to “take another look.” At the
October meeting, despite claiming to have remembered a tiger
tattoo, he was unable to identify it in a photo of
Veloz's arm. And while he chose the same photo of Veloz
that he had eventually selected in the September showing from
a new array, as best I can determine, Veloz's photo is
the only one to appear in both the September and October
arrays.[3]

The
relevant law can be succinctly stated. Suggestiveness that
leads to “a very substantial likelihood of irreparable
misidentification” is the due process defect that
federal law seeks to avert. Neil v. Biggers, 409
U.S. 188, 198 (1972), quoting Simmons v. United
States, 390 U.S. 377, 384 (1968). Under the test
confirmed in Manson v. Brathwaite, 432 U.S. 98, 114
(1977), “reliability is the linchpin in determining the
admissibility of identification testimony.” While
“suggestive” confrontations are discouraged, they
are not subject to a per se rule of exclusion.
See Perry v. New Hampshire, 565 U.S. 228, 244 (2012)
(“Most eyewitness identifications involve some element
of suggestion. Indeed, all in-court identifications
do.”) Rather, the issue is whether, in the totality of
the circumstances, the suggestive identification is
nevertheless reliable. Under the Brathwaite test,
the defendant must establish by a preponderance of the
evidence that the identification procedure was suggestive. If
the defendant meets that burden, the government is then
required to show by clear and convincing evidence that the
identification's reliability outweighs any suggestive
taint. State v. Cefalo, 396 A.2d 233, 238-239 (Me.
1979). Reliability is a function of the following factors:
(1) the opportunity of the witness to view the criminal at
the time of the crime; (2) the witness's degree of
attention; (3) the accuracy of any prior description; (4) the
level of certainty of the witness; and (5) the time elapsed
between the crime and the confrontation. Neil v. Biggers,
supra, at 199-200.

Applying
these factors, I cannot say with any confidence that the
clear and convincing evidence standard has been met in this
case. Consequently, I will exclude at trial both the
out-of-court and any in-court identification of Veloz by
Saliba. This Order does not preclude the government from
calling Saliba for the purpose of establishing that the cash
sales of the vehicles in fact occurred if independent
evidence can be adduced to confirm that Veloz indeed was the
purchaser.

ORDER

For the
foregoing reasons, the motion to suppress is
ALLOWED.

SO
ORDERED.

---------

Notes:

[1] According to Saliba, Betances and
Veloz were married when Saliba initiated the romance with
...

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